Wyman v. Taylor
| Decision Date | 11 April 1899 |
| Citation | 32 S.E. 740,124 N.C. 426 |
| Parties | WYMAN v. TAYLOR et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Swain county; Robinson, Judge.
Action by H. P. Wyman against F. W. Taylor and others. Judgment for plaintiff. Defendants appeal. Affirmed.
A statute law with regard to entries and grants of public lands in 1852 provided that, if an entry was not surveyed and grant taken out before the 31st of December of the second year thereafter, it should be null and void. Held, that one who had entered land under such law, and failed to make a survey and take out a grant within the time specified, did not acquire even an equitable claim under the entry.
Certain lands granted by the state were in M. county until the creation of S. county in 1871, when it was provided that the county government of M. county should extend over the new county until its officers were elected. Entries, surveys, and plats under a certain grant to lands in M. county were all made before the time fixed for the organization of S. county. Held, that the registration of the grant in M. county, in 1873, was sufficient, though the grant was not registered in the new county of S. until 1879.
F. A Sondley, Ferguson & Ferguson, and J. W. Cooper, for appellants.
Davidson & Jones, for appellee.
This is an action of trespass quare clausum fregit, and, the plaintiff not being in possession of the lands trespassed upon, the question of title is involved. After much skirmishing between the parties as to the location of lines and as to whether defendants could be held liable for trespasses committed by their servants, the contest became one of title. Upon this field each side marshaled its forces and the battle proceeded with great fierceness and for many days. The plaintiff claimed under a grant to W. L. Love issued in 1872, while defendants claimed under several grants issued to Cooper and Goodhue in 1885. The plaintiff's grant (the Love grant) is shown to cover the locus in quo, while defendants' grants (Cooper and Goodhue) also cover the locus in quo; and plaintiff contends that, as his is the oldest grant, he is entitled to recover. But defendants contends that he is not entitled to recover, for that the plaintiff's grant is void for many reasons, which they assign; and for the further reason that their grants are founded upon entries made by one Davis in 1852, and are entitled to a priority to the Love grant, which was not entered until 1871. But it is so manifest that the entries of Davis in 1852 have no bearing on the question that we dispose of that contention first. The Revised Code, which contained the statute law with regard to entries and grants in 1852, provides that if an entry is not surveyed, and a grant taken out thereon, before the 31st of December of the second year thereafter, it shall be null and void. Rev. Code, c. 42, §§ 8, 9. It is the policy of the state to bring its public lands into market, and it will not allow an entered to hold even an equitable claim upon them, by reason of an entry, beyond the time limited by law for the perfection of title. Stanly v. Biddle, 57 N.C. 383; Plemmons v. Fore, 37 N.C. 312. The defendants can therefore derive no benefit or relief, at law or in equity, from the Davis entries. This being, so, the plaintiff's right to recover depends upon the validity of the Love grant.
Defendants claim that the Love grant is void for the reason that the lands embraced therein are "Cherokee lands," and were not the subject of entry under grant; while they claim to derive title to a part of the same lands based upon entries made by Davis in 1852. While this may seem to be inconsistent, it will not benefit the plaintiff if it were true that said lands were not open to entry and grant until after 1871, when the entries in the Love grant were made. If this were true, it would avoid the Love grant, and would also avoid the grants under which defendants claim. Stanmire v. Powell, 35 N.C. 312. But it seems that these lands were open to entry and grant by the Acts of 1854-55, which had been done to a limited extent by the acts of 1852. It is true that the Acts of 1854-55 provided that not more than 640 acres should be included in one entry. The entries upon which the Love grant is based seem to have observed the requirements of this statute by not including more than 640 acres in any one entry. But a number of entries were made adjoining each other, and, in making the survey and plat for the purpose of taking out the grant, they were all surveyed together, and but one general boundary line made, which included the several entries. The defendants contend that this was a violation of the statute, and that the grant is void on this account. But it does not seem to us that this is so. The lands belonged to the state, and it had the right to grant them. It was to its interest to do so. It was the policy of the state to grant these lands to bona fide citizens, who would reside upon, clear, and improve them, and to keep them out of the hands, of speculators as much as possible. This policy, it seems to us, was a good one, and should have been observed, if it was not. But, if Love did not observe the rule prescribed by the legislature in its spirit, he seemed to have done so in the letter, as to making the entries. And the state has accepted his survey made upon these several entries, taken its pay, and granted him this lands. It must therefore be supposed that the state considered his entries, and his survey and plat, a substantial compliance with the statute, or it must have considered this provision of the statute as only directory, and the entries, survey, and plat a substantial compliance with the statute. However this may be, they seem to us to be but irregularities that do not vitiate and avoid the grant. Such irregularities seem to be expressly provided for in section 2761 of the Code, and the grantee's title validated, if they were defects, as contended by defendants.
It is also contended by defendants that the Love grant is invalid-void-for the reason that it appears from the grant that the boundary includes other lands theretofore granted and which are excepted from the operation of the grant. We do not think so. If the reservations had been general in their terms, without pointing their location or referring to something by which they could be located, the reservations would have been void, and the grant would have been operative as to the whole territory included within its boundaries. Waugh v. Richardson, 30 N.C. 470; McCormick v. Monroe, 46 N.C. 13. But where the reservations are located, or the data is given by which they may be located, the reservation is good, and the grant is also good, and conveys that part of the boundary not embraced in the reservations. McCormick v. Monroe, supra. The fact that it is...
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